Since E3 we’ve been talking a lot about what the gameplay capture landscape will look like when the new consoles launch this fall – specifically, whether or not we’ll be able to capture using anything besides Sony’s or Microsoft’s built-in tools.

This centers around HDCP – High-bandwidth Digital Content Protection – and whether or not the HDMI outputs of the new consoles will have this content protection always turned on (I’m betting yes). If it’s always on, then the video will be encrypted to prevent capture.

What’s more interesting to me are the people saying that capturing HDCP-protected content will still be possible, and that it’s not a big deal. Even Giant Bomb’s Vincent Caravella says “The HDCP would be the bigger headache, but not a deal breaker.”

If by “bigger headache” he means “against the law,” then he’s right.

We’ll all be criminals

In the United States, it is illegal to capture HDCP-protected content. The Digital Millennium Copyright Act – commonly known as the DMCA – explicitly prohibits the act of circumventing technological access controls on copyrighted material.

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

But IGN/Gamespot/Polygon/whoever are allowed to capture footage!

It doesn’t matter. Even if a publisher explicitly says “You are allowed to capture and post footage of my game,” that’s not what’s at issue here. The illegal act is that of removing the HDCP. It has nothing to do with what you’re doing or what permissions you may have – removing that encryption is illegal, and courts will rule as such.

There are only a few very specific exceptions where removing HDCP (or any other access control) is allowed; games journalism isn’t one of them. And though dev kits can provide an unprotected output, even most top-tier outlets do a large amount of capture from retail units.

So what, I’ll do it anyway!

That’s fine, and probably the approach that many will take. Just read this first.

Civil Actions. — Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation.

So everyone’s going to get sued and go to prison?

Even if the big gaming sites start stripping HDCP to capture their videos, I doubt that publishers are going to start suing. It’d make no sense – the big sites are major sources of free publicity, and the desire to maintain long-term relationships with studios and publishers keeps them from doing anything really crazy.

The real worry is what impact this will have on the smaller sites and individual creators. We’re slowly but surely moving to an intellectual property system where enforcement of the law is at the discretion of private companies, and the mere accusation of illegality can be devastating to individuals and small business.

This enforcement is possible because, as I’ve written previously, posting gameplay without authorization is already illegal. Unless permission has specifically been granted, as Riot Games and a few others do, most of these gameplay clips are already violating U.S. copyright law. By adding a DMCA violation on top of this the case for legal action gets stronger, while also rendering your “permission” moot.

Oh, also, now you can go to prison. Copyright infringement by public performance (which is what posting gameplay counts as) is a civil matter: you can get sued, but can’t do hard time. Not so with a violation of the DMCA’s anti-circumvention clause. Scroll up; it’s up to 5 years for first offense if you do it for financial gain.

Will they come arrest individual YouTubers? Probably not. But if constant HDCP becomes a reality, Machinima becomes an organization that makes millions from videos created by breaking federal law. The Justice Department might be interested in something like that.

Everybody loses

According to YouTube, 47% of gaming videos are community-created. That same report goes on to talk about how important online video is to the success of a game, that 40% of a game’s video views happen in the 4 months post-launch, and that the majority of these views are on community-created content. And it closes with this:

The Bottom Line

To engage with gamers meaningfully, game brands must meet them where they’re choosing to spend their time. Increasingly, their time is spent with online video.

Confused? You’re not the only one. Engaging with gamers, while at the same time rendering the engagement mechanism illegal, is pretty much the definition of contradiction. And with long-tail games like Destiny on the horizon, post-launch communities will be vital to a game’s sustained profitability; going to war with them is mutually assured destruction.

What do we do?

Unless and until the laws change, there’s not much to be done. At this point it’s pretty obvious that this kind of illegal behavior isn’t actually harmful to the content creators…since, you know, it’s being included in success metrics. All these laws do is give companies the ability to control brand messaging and bring a legal hammer down selectively if it suits their interests. I’m no lawyer, but I’m pretty sure that’s not the point of laws.

I would love to see the ESA throw its support behind the Unlocking Technology Act of 2013. While the Act’s stated goal is to allow people to unlock their cellphones and tablets, the language it would add to the DMCA would be of much wider benefit:

Circumvention for non-infringing uses permitted: This section modifies 17 U.S.C. 1201(a)(1) to
prohibit circumventing a technological measure that controls access to a work protected by
copyright – if the circumvention infringes or facilitates infringement of the copyright. The
section makes clear that it is not a violation to circumvent a technological measure if the
purpose of the circumvention is to use a work in a manner that is not an infringement of
copyright.

Good point. It’d be a fun lawyer argument, I’m not actually sure. The law is so vague that I think it could be argued either way. But it’s a grey area – stripping it off a retail unit’s output is a cut-and-dry violation.